Weehawken Environment Committee Inc. v. Township of Weehawken

Decided: July 13, 1978.

WEEHAWKEN ENVIRONMENT COMMITTEE, INC., A NEW JERSEY CORPORATION, BERNARD TUROK, JOSEPH J. WAGNER, JAMES T. DETTE, PETER BARNET AND MARIANNE WUILLAMEY, PLAINTIFFS,v.TOWNSHIP OF WEEHAWKEN, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, WEEHAWKEN PLANNING BOARD, TOWNSHIP COMMITTEE OF WEEHAWKEN, HOWARD KAPPLER, INDIVIDUALLY AND AS CONSTRUCTION OFFICIAL OF THE TOWNSHIP OF WEEHAWKEN; EDWARD J. KUNTZ, INDIVIDUALLY AND AS BUILDING INSPECTOR OF THE TOWNSHIP OF WEEHAWKEN, EXCEL PROPERTIES CORP., A NEW JERSEY CORPORATION AND TENWOOD TOWERS OF WEEHAWKEN COMPANY, A LIMITED PARTNERSHIP, DEFENDANTS

Before the court are cross-motions for partial summary judgment. The motions raise the issue of the validity of a municipal governing body's resolution granting tax exempt status to private corporations.

Tenwood Towers of Weehawken Company is the developer of a proposed high-rise, moderate-income housing complex in Weehawken. The land, owned by the Hackensack Water Company, is under contract of sale to Excel Properties Corp., a partner in Tenwood Towers of Weehawken Company (hereinafter both entities Tenwood). The Weehawken Environment

Committee, Inc. (Committee) challenges the proposed construction. The litigation represents a consolidation of two separate actions. A prerogative writ action, Committee v. Weehawken Tp. , was started in the Law Division. A separate action, Tenwood v. Weehawken Tp. , was instituted in the Chancery Division. Both suits were consolidated for trial.

The construction of the project envisions a land subsidy program sponsored by the Federal Government with the financing for the construction provided by the New Jersey Housing Finance Agency under N.J.S.A. 55:14J-1 et seq. That act seeks to facilitate private investment and construction or rehabilitation of moderate income housing through public financing. N.J.S.A. 55:14J-1.

As a prerequisite to the New Jersey Housing Finance Agency financing any building project in a municipality, the governing body must adopt a resolution of need. N.J.S.A. 55:14J-6(b). In addition, where a qualified housing developer, here Tenwood, wishes to obtain special tax treatment or to make payments in lieu of taxes it must obtain a tax abatement resolution and enter into a tax abatement agreement with the municipality. N.J.S.A. 55:14J-30(b). Specific authority for the granting of such a tax abatement is contained in the "Limited Dividends Housing Corporations Law". N.J.S.A. 55:16-18.

On October 24, 1977 the Township of Weehawken adopted a resolution of need pursuant to N.J.S.A. 55:16-12(1), and a second resolution authorizing tax abatement pursuant to N.J.S.A. 55:16-18. A lawsuit challenging the validity of the resolutions was filed, alleging violations of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. That lawsuit resulted in a judgment upholding the municipal action of the governing body. An appeal of that judgment is pending.

The makeup of the Weehawken Township Committee changed by virtue of the November 1977 elections with a new majority opposed to the housing project. The new

majority of the governing body-elect announced their immediate intention to rescind the resolutions of October 24, 1977, and after they assumed office the resolutions were rescinded on January 20, 1978. Suit was brought by Tenwood attacking the rescinding resolutions.

On February 9, 1978 the Committee served Tenwood with a complaint in the Law Division wherein the first nine counts attacked the site plan approval for various reasons. Counts 10 and 11 challenged the October 24, 1977 resolutions of the township authorizing tax abatement. The Committee also intervened in the Chancery action brought by Tenwood. In the Chancery suit the Committee filed a counterclaim and raised affirmative defenses identical to the counts contained in its Law Division complaint.

Initially, motions filed by Tenwood and the Committee for partial summary judgment were denied by this court, the court feeling that the issues were not yet ripe for determination and because a full background leading to the action taken by the governing body was vital to a clear understanding of the issues raised. At a subsequent pretrial conference the court, upon request by Tenwood, reconsidered its earlier ruling and decided to consider partial summary judgment action on the sole issue relating to the validity of the initial tax exemption resolution passed by the municipal governing body on October 24, 1977 pursuant to N.J.S.A. 55:16-18, on the theory that resolution of this issue might moot the numerous other issues raised. The tax exemption issue raises primarily the question of whether the township, before adopting the tax abatement resolution, was obliged by law to reach its determination of the existence of a blighted area only after investigation, notice and public hearings.

In order to facilitate the respective motions for partial summary judgment all parties have stipulated that at no time prior to the October 24, 1977 resolution had an area in Weehawken ever been declared to be blighted by any relevant governmental subdivision or agency, including the township committee, the Weehawken and Hudson County Planning

Boards and the Commissioner of the Department of Community Affairs. In addition, the parties have agreed to the contents of the tax abatement resolution, stipulating that the township committee found that

Based on these stipulated facts (see Ambassador Ins. Co. v. Rafael Montes , 76 N.J. 477 (1978)), the court finds that there is no genuine issue as to any material fact and that the validity of the tax abatement resolution is ready for summary judgment as a matter of law. R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 73-75 (1954).

At oral argument counsel for Tenwood suggested that since the validity of a township resolution was called into question and since it involved a novel question of statutory interpretation, the Attorney General should perhaps first be notified as to the pendency of the action. R. 4:28-4 provides that notice should be given to the Attorney General in certain situations where the validity of a state statute or constitutional provision is questioned. Where the validity of an ordinance, regulation or franchise of a governmental subdivision affecting the public interest is questioned and the subdivision is not a party, then it too should be notified.

R. 4:28-4 plainly here is inapplicable. The validity of a statute or constitutional provision is not questioned, and with respect to the tax abatement resolution both Weehawken Township and the Weehawken Planning Board are parties to the action. Hence, the court sees no reason to delay these proceedings further.

Tenwood interposes first a procedural objection to the Committee's attack on the resolution, arguing that the Committee is out of time under R. 4:69-6(a), which requires action not later than 45 days after the "accrual of the right

to review, hearing or relief claimed." Committee concedes that more than 45 days elapsed between the adoption of the October 24 resolution and the filing of its complaint, but urges that because of the extensive public interest generated by the proposed housing project the time limitation ought to be enlarged.

R. 4:69-6(c) provides that the court may enlarge the time period for prerogative writ complaints "where it is manifest that the interest of justice so requires." R. 4:69-6(c) is intended to codify in the form of a general standard decisional exceptions to the limitations period for prerogative writs. One of these exceptions is for cases involving "important public rather than private interests which require adjudication or clarification." Brunetti v. New Milford , 68 N.J. 576, 586-87 (1975). The Committee has submitted numerous newspaper articles on the proposed project covering the past year since it was first introduced to the community. The articles demonstrate a widespread, heated and controversial public debate concerning the project. The residents of Weehawken appear to be deeply interested and highly divided over the project's proposed construction. Tenwood does not dispute the fact that the project has generated intense public interest.

In Cervase v. Kawaida Towers, Inc. , 124 N.J. Super. 547 (Ch. Div. 1973), aff'd o.b. 129 N.J. Super. 124 (App. Div. 1974), involving the construction of a proposed housing project and a challenge to the validity of a tax exemption resolution, the moving parties commenced the action well over a year after the right to review accrued. In that case, in some respects similar to the present matter, the court stated with respect to timeliness:

Here, too, the court finds that the high level of public interest generated by the housing project in question manifestly requires the enlargement of time, and accordingly the court will address the merits of the issue relating to the validity of the ...

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